Contribution and Spending Limits for Initiatives or Other Ballot Propositions: What Evidence is Needed to Justify a Particular Regulatory Regime? – Commentary by Bernard Grofman

Drawing on the insightful synthesis of recent Supreme Court cases on expenditure and spending limits on ballot propositions by Richard Hasen, I briefly review the justifications for regulating levels of campaign contributions and expenditures in the initiative/referendum process based on claims about the critical importance of money in politics. My focus here will be on evidentiary issues rather than jurisprudence, per se. I focus on the important question “Where’s the beef?” – that is, exactly what evidence is needed to demonstrate that money can play a sufficiently pernicious and pervasive role in the initiative campaign process such that a balancing test against the scope of impingements on First Amendment rights is appropriate? I argue that the state of social science knowledge is not yet such that universal generalizations about the role of money in politics can be supported. Nonetheless, it is reasonable for courts to allow legislatures regulating the initiative process to rely on informative case studies as their grounding for the regulatory options chosen, rather than “waiting for Godot” in the form of definitive social science research. I also provide some suggestions as to the types of research that would both serve as important theoretical contributions in political science and be helpful for the courts in the future.